EAT RACE DISCRIMINATION
Burden of Proof
In determining a claim of post termination victimisation under the Race Relations Act 1976 the Employment Tribunal did not fail to consider the reason why the employer gave a different form of reference to the Claimant than they would have given to a comparator. They did not fail to have regard to the need for the decision maker to have knowledge of the Claimant’s protected act, the making of a claim under the RRA. The burden of proof provisions in section 54A do not apply to claims of victimisation under the RRA. The Tribunal correctly applied the approach in King v Great Britain China Centre  ICR 516 to the victimisation claim (Oyarce v Cheshire County Council  IRLR 653).
The parties assumed that the post-termination provisions of RRA, section 27A, apply to victimisation claims. This issue may have to be determined in a case in which it arises. In finding unlawful post termination discrimination under section 27A(2)(a) the Employment Tribunal erred in failing to consider whether the Claimant had suffered a detriment. Finding of victimisation set aside. Victimisation claim remitted to the same Employment Tribunal to determine whether the employer’s act of sending the reference subjected the Claimant to a detriment. Victimisation claim to be determined in accordance with the Tribunal’s decision on detriment.
 UKEAT 0030 – 10 – 1210
Race Relations Act 1976
Cited – King v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .
Cited – Oyarce v Cheshire County Council CA 2-May-2008
The court was asked as to whether the provisions for the reversal of the burden of proof in discrimination cases was limited to findings of discrimination or extended also to issues of victimisation, and as to whether section 5A had properly . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 November 2021; Ref: scu.425025